Dells Paper & Pulp Co. v. Willow River Lumber Co.

The following opinion was filed June 25, 1919: Rosenberry, J. There are 119 assignments of error argued under twenty-three separate heads, appellant’s brief" containing 300 pages. No at^mpt will be made to set forth in detail all of the questions raised on this appeal; they have all been considered, but only the more important will be treated. The lands described in the contract are located in Ashland and Bayfield counties. The action was begun in Sawyer county, but was tried in the circuit court for Eau Claire county. Sec. 2619, Stats., provides: “The proper place of trial of civil actions is as follows, respectively: “First. Of an action within one of the classes next following, the county in which the subject of the action or some part thereof is situated, viz.: “(1) For the recovery of real property, or of an estate — 32 — or interest therein, or for the determination in any form of such estate or interest, or for an injury to real property. “(2) ... “(3) For the foreclosure, redemption or other satisfaction of a mortgage of real property.” The action was begun in Sawyer county and no steps were taken to change the venue, so the action was properly triable in Sawyer county. West v. Walker, 77 Wis. 557, 46 N. W. 819. The question is, Can this action, properly triable in Sawyer county, be tried in Eau Claire county at a special term for Sawyer county, both counties being in the same circuit, said term being a general term for Eau Claire county, under the provisions of sec. 113.11, Stats., which provides that all business may be done at a special term which might be done at a term in the county where the business arises, except (a) the trial of issues by a jury, and (b) the trial of issues of fact in actions made local by law and arising in some county other than the one in which such special term is held ? This action was one to compel specific performance and to enjoin the defendant from interfering with plaintiff’s exercising its contract rights and is therefore an equitable action and is not triable by jury'' It is not an action made local by sec. 2619, Stats., as the decree in this case operates not upon the land but upon the person. The court is not asked to pass title to anything by its decree. Its judgment is that the defendant perform its contract, or, in the event of its failure to perform it, that it do not interfere with its performance by the plaintiff in the manner specified in the contract. The defendant’s next proposition is that the contract should not be specifically enforced because it contains within its provisions a remedy which the plaintiff should first exhaust before seeking the aid of equity. In view of what was said by the defendant in its letter of October 9, 1917, — 33 — which stated, “we will refuse to ship you logs on the same,” referring to the contract, some question might have arisen as to how far the plaintiff should have gone in attempting to carry out the contract under the provisions authorizing it to enter upon the lands in case of the defendant’s default. Upon the order to show cause why a temporary injunction should not be granted, the defendant then insisted and at all times has insisted that the plaintiff had no rights under the contract, that the contract was wholly at an end, and this action is brought for the very purpose of enabling the plaintiff to avail itself of the remedy, which the contract gives it. In its answer the defendant alleged “that the defendant had expressly revoked, canceled, and terminated the said license, authority, and permission, and . . . that when this action was commenced said license, authority, and permission was no longer operative or in force, and for that reason is-not, and was not when this action was commenced, any longer subject to enforcement.” Under such circumstances the plaintiff was not required to go through the useless formality of attempting to enter upon the defendant’s lands. It is next contended that the plaintiff has an adequate remedy at law and will not suffer irremediable injury if the contract is not enforced. In the statement of facts there has been set forth very briefly the facts found by the trial court upon which the conclusion is based that plaintiff’s legal remedy is inadequate. There must not only be a remedy at law, but that remedy must be plain and adequate and as practicable and efficient to the ends of justice and its prompt administration as is the remedy in equity. Miller v. Drane, 100 Wis. 1, 75 N. W. 413. Not only is the remedy inadequate as found by the trial court, but the principles applicable to a contract for the sale of lands should apply here. Where-competent parties have made a contract for the sale of lands which is reasonably certain in all its parts and not objectionable for unfairness or inequity, there is no room — 34 — for the exercise of judicial discretion as to whether it should be specifically performed or not. Such performance is a matter of right. Heins v. Thompson & Flieth L. Co. 165 Wis. 563, 163 N. W. 173. So here there was a contract to cut and deliver certain kinds of timber from certain tracts of land to meef a specified purpose. It is clearly shown that no other like opportunity is open to the plaintiff. Such a contract cannot now be made. The defendant had the benefit through seven years of the full performance of the contract and is certainly in no position to complain or to shield itself behind the claim that the plaintiff has an adequate remedy at law. Not only are the damages practically impossible of ascertainment with any fair degree of accuracy, but the amount of material to be delivered can be determined only by the completion of the contract. To require plaintiff to shut down its plant or to run it with an inadequate supply of raw materials, lose the benefit of its power lease and of its plant investment for an indefinite period, under the circumstances found by the trial court, would- be manifestly inequitable and unjust. It would be -manifestly impossible for the plaintiff, in view of the unknown and changing costs of labor, supplies, and transportation, to prove its damage over the remaining period of the contract. Under the facts found by the trial court it is doubtful whether or not the plaintiff could secure in the later years of the contract period materials at a price which would permit it to use its plant. The evidence is ample to sustain the findings of the trial court, and the conclusion necessarily follows that the plaintiff’s legal remedies are inadequate. The defendant further claims that the contract is too indefinite and uncertain to be capable of specific performance, both in its provisions relating to the defendant doing the work and in its provisions relating to plaintiff doing the work under the entry clause. • Most of the uncertainties complained of, if such there — 35 — be, arise by reason of the defendant’s wilful breach of the contract. Under the contract the defendant may at its option deliver certain hemlock and tamarack pulp wood. The first party (defendant) also agrees to peel the hemlock logs, and in the event of its failure to peel said logs the second party (plaintiff) shall have the right to peel the logs and retain the bark. The contract contained certain other options as to substitution of lands and as to other matters. It is thought that because of these options which the defendant had under its contract the contract is incapable of specific performance because the plaintiff in the event of its entry under the entry clause could not exercise these options. These and other uncertainties are imaginary and fanciful. If the defendant in defiance of the decree of the court continues in its refusal to perform the contract and to comply with the court’s decree, such refusal must amount to a waiver of its options under the contract. With these options eliminated all uncertainties disappear, and the plaintiff will be authorized to enter upon the lands in accordance with the terms of the entry clause and cut and remove therefrom the material therein specified. The case of Park v. M., St. P. & S. S. M. R. Co. 114 Wis. 347, 89 N. W. 532, has no application to the facts found by the trial court in this case. The contract in this case is definite: the timber and pulp wood are to be cut from certain lands, delivered at a particular place and in a certain way. No peculiar skill or ability is required to cut and log hemlock timber, and there is no reason why it may not as well be done by one person as by another. That it may be done much more advantageously by the defendant, which is fully equipped and organized for such work, is, as the trial court finds, clearly apparent. If, however, the defendant continues to violate the terms of its contract and to defy the decree of the court, the increased cost of operation will fall ttpon it under the terms of the contract. The contract was performed for seven years in — 36 — a spirit of mutual helpfulness and accommodation and a practical construction has thereby been placed upon the contract which in case of controversy ought to furnish a reliable guide to future action. The contract by its terms provides for all reasonable contingencies. It being one enforceable by a court of equity, the defendant has no power to terminate it, much less the right to do so. Whatever loss or injury the defendant sustains will be the result of its own wrongdoing. It is claimed that the entry clause contained in the contract is a mere license to enter upon and cut, and was therefore revocable and was in fact revoked before the commencement of this action. Without entering into a discussion as to the exact nature of the plaintiff’s rights under the entry clause, it is sufficient to say that in this case, under the facts found, the plaintiff’s rights were more than those of a licensee under a revocable license. Here, the plaintiff had' for seven years performed the contract in reliance upon this provision; it was a part of the consideration for the contract, a valuable part. Plaintiff has expended $100,000 in excess of the market price of the material which it has received in reliance upon the contract, <f ' which the right of entry was a material and substantial >art. To deny the plaintiff the right to enter upon the lands of the defendant and take therefrom that which it has purchased, would, as found by the trial court, inflict an irreparable loss upon the defendant and would amount to a fraud. The privilege here given was incident to a valid grant, is evidenced by a written instrument, is supported by a valid consideration, has been acted upon by the plaintiff, and is therefore not revocable. It is argued that specific performance should be denied upon the facts found by the trial court, for the reason that specific performance of the contract would be detrimental to the public interest in that it would tend to foster a mo — 37 — nopoly. No facts appear upon the record and none are called to our attention upon which such a claim can be based. The validity of the contract must be determined as of the time it was made and not as of the time when specific performance is sought. However, it is not intended to intimate that, if the facts as they now exist had existed at the time of the inception of the contract, anything appéars upon which a finding could be based that specific performance of the contract would be in any way detrimental to the public interest. Upon the whole case the plaintiff is clearly entitled to the decree of specific performance Of the contract. The contract is definite and certain, the legal remedies of plaintiff are inádequate, and valuable rights under the contract cart be preserved to it in no other way., The defendant entered into a fair contract and for many years it proved to be a very profitable one. Because the market price of the material covered by the contract has advanced, defendant seeks to be relieved of its solemn obligation formally entered into. If the contract were not one capable.of specific performance dhe defendant would have the power to terminate it, but being capable of specific performance it must perform the contract or submit to the legal consequences. Specific performance of the contract was properly decreed by the trial court. Heins v. Thompson & Flieth L. Co. 165 Wis. 563, 572, 163 N. W. 173; Kipp v. Laun, 146 Wis. 591, 131 N. W. 418; Curtis L. & L. Co. v. Interior L. Co. 137 Wis. 341, 118 N. W. 853; Daniels v. Bailey, 43 Wis. 566, 569; Pomeroy, Contracts (2d ed.) sec. 6; Watefman, Spec. Perf. § 15; St. Regis P. Co. v. Santa Clara L. Co. 173 N. Y. 149, 65 N. E. 167; S. C. 186 N. Y. 89, 78 N. E. 701. The court having taken jurisdiction for the determination of the equitable issues involved, also determined ánd awarded damages which had been sustained to the time of judgment. This was correct and clearly within its power. — 38 — Combs v. Scott, 76 Wis. 662, 672, 45 N. W. 532; McLennan v. Church, 163 Wis. 411, 158 N. W. 73. The contract of October 26, 1909, contained the following provision: “Said first party [defendant] does hereby agree to sell to the party of the second part [plaintiff] the timber, logs and pulp wood- hereinafter described, cut said timber into logs and pulp wood, load said logs and pulp wood on the cars, and deliver the same to party of the second part at Grand View on the Ashland division of the Chicago, St. Paul, Minneapolis & Omaha Railway.” The logs were hauled to Grand View by the Superior & Southeastern Railway Company. At the time the contract was entered into there was a local rate on the Superior & Southeastern Railway, from the point where the logs were loaded, to Grand View, of $1.25 per thousand feet. Contemporaneously with the’making of the contract of October 26, 1909, the plaintiff, the Superior & Southeastern Railway Company, and the Omaha Company entered into a contract for a joint rate by which the logs were to be transported from the loading point to Eau Claire and delivered to the plaintiff for four cents per hundredweight, which was to be apportioned between the Superior & Southeastern Railway Company and the Omaha Railway Company, the Omaha Railway Company receiving two and one-half cents and the Superior and Southeastern Railway Company one and one-half cents per hundredweight. During the seven years that the contract was performed the Omaha Railway Company ’ collected from the plaintiff freight at the rate of four cents per hundredweight. One and one-half cents per hundredweight was charged to defendant and deducted from time to time from the amounts owing by the plaintiff to the defendant, the defendant under the contract being required to pay the freight on the logs to Grand View, the junction point of the Omaha Railway Company. The trial court — 39 — found that the Superior & Southeastern Railway Company was practically only a logging-road of the defendant company ; that the owners of the Superior & Southeastern Railway Company were John E. Glover and members of his immediate family; that the owners of the-defendant company were John E. Glover and members of his immediate family; that the contract of October 26, 1909, and the con: tract between the plaintiff, the Omaha Railway Company, and the Superior & Southeastern Railway Company were parts of the same transaction; and it clearly appears that one contract was a consideration for-the other. The court further found that the contract fixing the freight rate was made between the plaintiff and the railway company for the purpose of inducing the plaintiff to purchase of the defendant the material described in the contract and that plaintiff made the purchase relying upon the. joint rate so established. While the rate contract was not signed until November 27, 1909, it was fully agreed upon prior to the signing of the contract of October 26, 1Í109. Defendant contends that it ought to be required to pay no more than $1.25 per thousand feet, the local rate to Grand View. It appears that the rate of one and one-half cents per hundredweight amounts to $2,085 per thousand feet. The contention of the defendant is tliat the publication of the contract rate had no effect upon the local rate and that it should be charged no more than the local rate. The local rate from Grand View to Eau Claire on the Omaha Railway is 3.55 per hundredweight. If the plaintiff were required to pay the sum of the two locals it would have been compelled to pay a sum in excess of four cents per hundredweight. While the contract of October 26, 1909, does not specify the rate which the defendant, was required to pay for delivery of the logs at Grand View, the conclusion of the. trial court that the agreement to deliver the logs at Grand View amounted to an agreement to pay the freight as speci — 40 — fied in the contract between the plaintiff and the railway companies, the defendant company having full knowledge of all the facts and circumstances, is one abundantly supported by the evidence. The contracts were not only made contemporaneously, one beihg a consideration for the other, one being made in reliance upon the other, but the defendant company made settlement for seven years without objection on this basis, which is conclusive as to the basis upon which the freight rate was to be apportioned. The defendant company has therefore been properly charged with one and one-half cents per hundredweight, and on subsequent shipments should be charged a like sum. If the defendant has thus indirectly paid the Superior & Southeastern Railway Company a greater sum than it is legally entitled to receive, and upon that we express no opinion, its remedy is against that company and not against the plaintiff, which is obliged to pay the contract rate to the Omaha Railway Company in order to get possession of its property. It follows from what has been said that the order granting a preliminary injunction was right and should be affirmed. By the Court. — Judgment and order appealed from affirmed. Eschweiler, J., dissents.